February 15 – 16, NITA and Dependency Advocacy Center joined together for a public service program held in San Jose, CA for eight attorneys to cover trial evidence skills. NITA Program Director Henry Brown, who has staffed over 100 NITA programs over the years, led the trial skills training, working with Dependency Advocacy Center Program Manager, Hilary Kushins.
The two-day training consisted of skills such as objections, witness examination, and use of exhibits. The goal of this training was to help the attorneys enhance their skills in making and meeting objections and understanding evidentiary issues as they arise in court.
After the training concluded, Ms. Kushins noted that the training was very beneficial and the attorneys enjoyed the hands-on aspect. “We had NITA come for a day and a half to conduct a very personalized training for our attorneys. The facilitator [Brown] was amazing and really tailored the training to the specific needs of the attorneys. The attorneys found the drills tremendously helpful. I have no doubt the attorneys will bring the skills they learned from this experiential, hands-on training into the courtroom for months and years to come.”
NITA is grateful to have been able to work with Dependency Advocacy Center on a public service program and hopes to continue training efforts together for many years to come.
I had a 100-day plan: a platform, a place to start before undertaking the role of NITA’s fearless leader, a way to measure my first 100 days on the job. Want to know what was on my 100-day plan?
With just a few date changes, the 100-day plan worked! The massive undertaking of a 10-city listening tour, assessment feedback and reporting out, training and transition, communication strategy, plus regular NITA operations, all happened as planned. I’ve spent a lot of time on messaging for staff to increase engagement, create a culture aligned with our core values, and push us to results-oriented thinking.
Developing my own communication strategy is still a work in progress. I am still thinking how to best connect with each of you on a more consistent basis. My overall goal remains to engage, align, inspire, and move people to act. That includes each of you.
Thank you to everyone who participated in a round table (we still have two scheduled), responded to my New Leaders Assessment, and called or emailed to tell me why NITA is important to you and how you view NITA’s future. I look forward to hearing from more of you as we move forward together.
National Institute For Trial Advocacy
Using Smaller Questions to Make Points Bigger in Direct and Cross Examination
(Second of Two-Part Series)
Written by NITA guest blogger, Michael R. Fontham
A common failing of lawyers in trial is the tendency to cede control to witnesses, whether on direct or cross-examination. Lawyers give up control by asking general rather than specific questions. It may seem paradoxical, but the best method to make big points in examining witnesses is through small questions, strung together to create mini-themes. The techniques are different in direct versus cross, but the aims should be the same: to emphasize the strongest points forming the central message of the attorney’s case. Many lawyers fail to understand that controlling the testimony is essential to presenting a case theory in the most powerful way, which requires the use of specific questions. This article will discuss techniques for using this approach in direct and cross-examination.
Part II: CROSS-EXAMINATION
Just as in direct examination, lawyers often tend to be too general in cross-examination. This fault probably results from excessive enthusiasm for the “rightness” the attorney’s points. This zeal results in questions that are often too conclusory or convoluted. A well-prepared witness is not likely to answer a conclusory question like “You were the one at fault, weren’t you?” with a “yes,” and more important, may respond with all the reasons the lawyer’s client was really the one at fault. Again, it is far more effective to use specific, closed-end questions, phrased with the leading form, in which the lawyer DOES provide the pertinent information.
To understand the value of specific questions, consider the witness’s perspective. The witness has been called and examined by your opponent. Generally, that means the witness is loyal, to some extent, to the opposing side and wants to help that side win the case. The degree of loyalty will differ, as a party witness has a much stronger desire to win than a third party recruited to testify, but most of the time the witness feels some responsibility to do a good job for the opposing party. What does that require? — making points for the opposing party. As an expert once told me, in cross-examination, “I am looking for a chance to make a speech.” In that “speech,” the witness reiterates points from the direct examination.
The primary difficulty with conclusory or complex questions is that they invite conclusory and complex responses, embroidered with points for the other side. In the psychology of cross-examination, and before an audience, a witness is likely to feel uncomfortable introducing a gratuitous speech in response to a specific, closed-end question. A general question, on the other hand, fairly calls for a general response. Additionally, questions that border on argumentative — “You said X, so Y must be true too, right?” — invite the witness to explain that the reasons why Y is most certainly not true. Since the scope of answers are likely to match the scope of questions, the attorney controls the examination much more effectively with specific questions.
Using specific questions on cross-examination is also a great way to achieve emphasis. More questions about a point make the points seem bigger, and on cross-examination seem to build momentum in the courtroom. A leading treatise on trial technique opines that “[t]he successful trial lawyer takes [a] fact [and] builds up that fact until it assumes unusual importance through the medium of a series of questions….” 3 Fred Lane, Lane’s Goldstein Trial Technique 19:36 (3d Ed. 2011). In this “mountain out of a molehill” approach, points that are important are built up through a series of questions that the attorney creates by breaking the point into its necessary components. If the witness knows the fact is true, and would have to agree it is a fact, then the witness has to agree that the components are true as well.
One of the primary means of preparing cross-examination is to consider the prior testimony or statements of the witness. A witness is not likely to diverge from facts described in prior testimony, and if the witness does, the lawyer can impeach with the prior (now inconsistent) statement. Thus, for an important factual point, the attorney can achieve emphasis by breaking up the point: if what the witness said is true, what must necessarily be true as well? Usually the “necessarily true” points are within the scope of the statement, not outside it.
Staying within the scope of the prior statement is essential to effective cross-examination. The lawyer should not take it for more than it is worth, but focus on the parts. Examples of poor, better, and even better technique follow:
Break it into necessary parts:
The prior statement cannot be used effectively to impeach the response to the first question, because the lawyer tried to make too much of the prior statement. The second question should produce a “yes,” or permit effective impeachment, but it does not develop the point. In the third approach, the attorney achieves emphasis and retains the ability to impeach effectively. The prior statement backs up each of the questions. If the witness denies any of the first five questions, the lawyer can fall back to the sixth, then impeach if the witness denies the question.
Small questions allow the lawyer to retain control in cross-examination. The lawyer should have a plan and needs control to properly execute it. The best method to maintain that control is to use smaller rather than bigger questions.
[Michael R. Fontham is a member of the New Orleans law firm of Stone Pigman Walther Wittman L.L.C., engaging in a litigation practice. Mr. Fontham authored “Trial Technique and Evidence”, a text on trial advocacy and evidence published by NITA. He is also the author (with Michael Vitiello) of “Written and Oral Advocacy in Trial and Appellate Courts”, a treatise on brief writing, oral argument and legal research. He teaches evidence as an adjunct professor at the LSU Law Center and Tulane Law School.]
On February 14 – 16, NITA teamed up with Brooklyn Legal Services Corporation A, whose mission is to advance social and economic justice by empowering communities through innovative, collaborative, neighborhood-based legal representation and advocacy, for a public service trial skills program. This 3-day program took place in Brooklyn, New York and was led by NITA Program Director, Barbara Barron. Barron, who has taught at over 100 NITA programs, worked with Deputy Unit Director at Brooklyn Legal Services, Lina Lee, in order to develop this public service program for their 15 attorneys.
After the program concluded, Lee stated that, “NITA has provided Brooklyn Legal Services Corp A with an invaluable training and tool kit to effectively advocate and litigate on behalf of our clients. We are grateful for the rare and tremendous opportunity to learn from leading trial experts to better serve the most vulnerable and marginalized communities in our efforts to preserve affordable housing in Brooklyn.”
Similarly, one attendee stated, “[The training was] excellent and informative. The trainers were outstanding, and a great resource.” During the training, some of the skills that were covered included: direct and cross examination, impeachment, and evidentiary foundations.
Another attendee stated, “This course was excellent! [The training had] very straightforward guidance with a lot of good opportunities for practice. The lecturers really knew their stuff and were very effective teachers.” NITA is grateful to have worked with Brooklyn Legal Services Corporation A for this training program through our public service mission.
Today is International Women’s Day, and who better to help us reflect on the role of women in society and the law than the iconic Ruth Bader Ginsburg, a woman who seemingly has done it all?
Throughout her trailblazing life, Justice Ginsburg has been a judge, a wife, a mother, a law professor, an author, a cancer survivor, a pop icon, a lace jabot collector 😉—and on May 4, she’ll add “movie star” to the list, when the documentary RBG opens in theaters in the U.S.
On being a woman
“My mother told me two things constantly. One was to be a lady and the other was to be independent, and the law was something most unusual for those times because for most girls growing up in the ‘40s, the most important degree was not your B.A. but your M.R.S.”
“At Columbia Law School, my professor of constitutional law and federal courts, Gerald Gunther, was determined to place me in a federal court clerkship, despite what was then viewed as a grave impediment: On graduation, I was the mother of a 4-year-old child.”
“When I graduated from law school in 1959, there wasn’t a single woman on any federal bench. It wouldn’t be a realistic ambition for a woman to want to become a federal judge. It wasn’t realistic until Jimmy Carter became our president.”
On courts and the law
“We have the oldest written constitution still in force in the world, and it starts out with three words, ‘We, the people.’”
“One aspect of appellate judging is we have to give reasons for all of our decisions. And when you sit down and try to write it out, sometimes you find that your first judgment wasn’t the right one.”
“A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
On being a pop icon
“At my advanced age—I’m now an octogenarian—I’m constantly amazed by the number of people who want to take my picture.”
“I think a law clerk told me about this tumblr and also explained to me what Notorious RBG was a parody on. And now my grandchildren love it, and I try to keep abreast of the latest that’s on the tumblr.”
“I do a variety of weightlifting, elliptical glider, stretching exercises, pushups.” (Try her workout here.)
“In 2015, an opera opened about me and Justice Antonin Scalia. It’s called Scalia/Ginsburg. The composer, Derrick Wang, has degrees in music from Harvard and Yale. Enrolled in law school, he was reading dueling opinions by me and Justice Scalia and decided he could compose an appealing comic opera from them.”
“If I had any talent that God could give me, I would be a great diva.”
“You can disagree without being disagreeable.”
“I am fearful, or suspicious, of generalizations. . . . They cannot guide me reliably in making decisions about particular individuals.”
“Reacting in anger or annoyance will not advance one’s ability to persuade.”
“Fight for the things that you care about, but do it in a way that will lead others to join you.”
“I really concentrate on what’s on my plate at the moment and do the very best I can.”
“The label ‘liberal’ or ‘conservative,’ every time I hear that, I think of the great Gilbert and Sullivan song from Iolanthe. It goes, ‘Every gal and every boy that’s born alive is either a little liberal or else a little conservative.’ What do those labels mean? It depends on whose ox is being gored.”
“When a thoughtless or unkind word is spoken, best tune out.”
“You can’t have it all all at once. Over my lifespan, I think I have had it all, but in given periods in time, things were rough. And if you have a caring life partner, you help the other person when that person needs it.”
NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.
NITA’s Goals are to: